Helpline Q&A - Annual Leave & Sickness Absence

In 1998, all UK workers were provided with a minimum entitlement to annual leave by the Working Time Regulations. These regulations resulted from a piece of European law - The Working Time Directive. Numerous questions have been raised about how this entitlement is affected by sickness absence, particularly long term absence.

It is the role of the European Court of Justice and the UK Appeals Courts to interpret the law and in a long line of cases they have provided rulings on the issues brought before them. However, as Lord Justice Mummery recently said

"The unfolding law on paid annual leave is not in a completed state, which must be a great disappointment to those hooked on the hopeless quest for completeness."

NHS Leeds v Larner Court of Appeal 25/07/12

What has been decided so far?

Is a worker entitled to annual leave for periods of sickness absence?

Yes, entitlement will continue to accrue during the absence.

Can a worker take annual leave whilst off work sick?

If the worker wishes to do so they can, but equally they can choose not to.

If a worker becomes sick whilst on annual leave, can they re- schedule the leave?

Yes, the worker is entitled to take the leave at another time, if they wish to do so.

If an employee is unable to take their annual leave within their current leave year, due to sickness absence, can the entitlement be carried forward?

Yes, where a worker has not had the opportunity to take the full entitlement to annual leave because they have been absent due to sickness, any remaining entitlement can be carried forward to the next or subsequent leave years.

Does the worker need to apply to carry over the untaken entitlement?

No, there is no need to for the worker to make a request in order to to keep the annual leave entitlement.

Does the same apply when the worker is dismissed?

Yes, the worker will be entitled to payment for any untaken annual leave that has been carried forward in such circumstances.